On June 10, the Texas Legislature passed House Bill 1325 and Governor Abbott signed it into law. The law legalizes and regulates the production of hemp and hemp-derived products in the state. But without testing, the police have no way of knowing whether a given substance is hemp or marijuana — and the testing is limited and costly. For that reason, some Texas counties, including Harris County, have stopped prosecuting cases of marijuana possession.
As we discussed in March, hemp has been federally legal since December. Hemp can be used for a variety of purposes and contains very little THC, which is the psychoactive part of marijuana. House Bill 1325 capped the allowable THC in hemp at 0.3%. But there is no easy way to identify hemp vs. marijuana. Indeed, the Drug Enforcement Administration is currently seeking a field test that could differentiate the two plants.
The only way to tell for sure is to get the plant tested at a lab. Currently, there is only one lab in Texas equipped to perform that test. That could mean long waits for test results in what is typically a misdemeanor case. Furthermore, someone from the lab would have to come to court to testify, and that would be costly and difficult to arrange.
In other words, the legalization of hemp has made it very expensive and difficult to prosecute low-level marijuana cases. Without a test to confirm the substance is marijuana, there is no way to prove possession of marijuana beyond a reasonable doubt. And the test is too time-consuming and costly for cases of simple possession, according to some prosecutors.
Harris, Tarrant, Bexar and other counties draw down on marijuana possession
Since the bill’s passage, prosecutors in Harris, Tarrant, Bexar and Travis counties have announced they will no longer prosecute misdemeanor marijuana cases. Williamson County will decide whether to prosecute on a case-by-case basis, depending on whether there is separate evidence that the substance is marijuana. Galveston, Montgomery and El Paso counties are still planning to prosecute these cases.
Some cases filed since the law was passed are also being dropped. Tarrant County has dropped 234 marijuana misdemeanor cases. Travis County dropped 93, including 32 felony cases.
That said, some sheriffs have announced their intention to continue making arrests in misdemeanor marijuana cases even if those arrests don’t result in prosecutions.
If you were arrested for marijuana possession after hemp was legalized, you may be in luck. Your charges may have been dropped. If you were arrested before the new law was passed, however, your case will not be dropped for this reason and you still need to contact an experienced criminal defense attorney.